Volume 151, No. 100
Alexander Hamilton said that "I have thought it my duty to exhibit things as they are, not as they ought to be." Apparently this makes him America's first great economist. For, argue Steven D. Levitt and Stephen J. Dubner in their new book "Freakonomics," "Morality ... represents the way that people would like the world to work -- whereas economics represents how it actually does work."
And economics has great relevance to, among other things, criminal law enforcement in America.
Applying economics to criminal law is hardly novel. Chicago lawyers need only look to the extensive body of work on this subject by Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals.
But Steven Levitt -- yet another University of Chicago economist -- has become the popular media's flavor-of-the-month with some particularly controversial theories of why crime rates have declined during the last 15 years. He has moved from lecturing on John Stuart Mill in Hyde Park to entertaining Jon Stewart's millions of viewers on "The Daily Show."
Levitt's favorite tactic is to debunk popular ideas appearing under that pejorative phrase coined by John Kenneth Galbraith: "conventional wisdom." He contends, for example, that the strong economy of the 1990s actually had little to do with the declining crime rate during that period. He likewise dismisses those who thought either use of the death penalty or an aging population or tougher gun laws had any tangible effect. He finally casts doubt on whether trendy new policing strategies -- such as James Q. Wilson's and George Kelling's "broken window theory" used in New York under Rudolph Giuliani's administration -- had any real effect.
Instead, Levitt attributes fully one-third of the drop in crime simply to the sharp increase in imprisonment in America. Levitt sees imprisonment as
fulfilling two different functions: deterrence (for the would-be criminal on the street) and prophylactic (for the would-be criminal who remains locked up).
But who caught the criminals who were imprisoned? The police. And Levitt attributes about 10 percent of the drop in crime to the large increase in the number of police hired around the country during the 1990s. Another 15 percent of the decline, Levitt contends, can be attributed to the sharp decline in the price of crack cocaine, thus making crack-dealing a less attractive risk.
And what about the remaining 40 percent of the drop in crime?
This brings Levitt to his most controversial point. He contends that the legalization of abortion in the 1970s resulted in the absence of a generation of unwanted children who would have had marked proclivities toward lives of crime. He even notes that an individual state's abortion rate is correlated to its crime rate; that is, those states with the highest abortion rates in the 1970s actually experienced the greatest drops in crime during the 1990s, while states with lower abortion rates experienced smaller crime drops.
Levitt emphasizes that he is neither lobbying for or against abortion, but is merely reporting his statistical findings. In fact, he notes that one can certainly "feel shaken by the notion of a private sadness being converted into a public good."
This economic concept of "unintended consequences" can be seen in other areas of criminal law.
For example, Steve Bogira's new book "Courtroom 302" describes the creation of night drug courts at 26th Street and California Avenue in 1990. The idea was to shift most of the drug cases off the regular dockets at the Criminal Courts Building and into five special drug courts that would begin work at 4 p.m.
The courts were quickly hailed as a success. During the first full year, they had almost twice the number of anticipated dispositions. The Chicago Tribune called it "one of the smartest recent moves" in the Cook County courts.
But it was too smart by half. For the very efficiency with which the courts disposed of drug cases had the unintended consequence of encouraging even more drug arrests. Before the drug courts opened, police who found on a person only enough drugs for one or two uses often let the suspect go, knowing that the preliminary hearing judges had no time for such petty offenses. But with the drug courts operating, police were more inclined to arrest a suspect with only a small quantity of drugs. Then-Public Defender Rita Fry thus described the creation of the drug courts as similar to "opening the gates to a dam wider during a flood." The jail population increased because of the "virtually inexhaustible supply" of drug users.
And just who were these arrestees? Harvard Law Professor William Stuntz brought an economic perspective to this question in his essay "
Race, Class and Drugs," 98 Columbia L. Rev. 1795 (1998). Stuntz focused on the unintended consequences of search and seizure law on police decision-making in America.
Search and seizure law determines which police tactics are "expensive" and which are "cheap." Civil libertarians rejoice when the Supreme Court demands a warrant to arrest a person in a home (
Payton v. New York, 445 U.S. 573 (1980)) or condemns the warrantless use of a thermal imager to reveal heat inside a private home (
Kyllo v. U.S., 533 U.S. 27 (2001)). These decisions make it "expensive" for the police to conduct operations against private homes.
But Stuntz points out that these decisions celebrating "privacy" have a class impact because "[P]eople with money enjoy more privacy than people without. They live in freestanding houses and own more land; they conduct less of their lives in public spaces like the neighborhood streets. ... In short, Fourth Amendment law both focuses heavily on an interest (privacy) that is of particular value to wealthy people and protects that interest in ways that favor those same people." At 1824.
Thus, Stuntz continues, the police are making a rational economic choice by focusing their attention on open-air drug dealing. The problem, however, is that the neighborhoods these markets are found in are usually rundown, urban, segregated areas. Minorities are targeted by police not necessarily because the police are racist but, rather, because the courts have imposed prohibitive costs on policing in upscale areas. Thus, the rational economic choice forced on the police results in skewed racial effects in enforcement.
Thomas Carlyle referred to economics as "the dismal science." And, as
illustrated above, the unintended economic effects of criminal law and procedure can indeed be disturbing. But the positive effect is that this knowledge should make us more vigilant in watching for unintended consequences.
Edward Lorenz once raised the issue of whether the flap of a butterfly's wings in Brazil could set off a tornado in Texas. Judges, lawyers and legislators have to likewise consider the butterfly effect in criminal law.
